Melendez-Diaz – Prof. Friedman

First, this is a terrific decision. It is the right result, for the right reasons. It clears up a lot of issues that should have been clear. It should have been unanimous; the principal concern it raises is not anything it says, or doesn’t say, but that only five justices joined it, and one of those five is about to leave the Court.

As previously stated, I think CAAF will stick with Magyari, and will likely find some language in the majority opinion. However, my sense is that the court will do so for the wrong reasons stated within the dissent by Justice Kennedy. Here is Professor Friedman’s comment on that – the political reasoning.

Finally, and perhaps what most motivated the dissenters, is concern about the burden to the judicial system. Once again, the response is basically two-fronted. Sure the Confrontation Clause, like other constitutional guarantees, makes prosecution more burdensome, but that does not give us leeway to ignore it. At greater length, the Court expresses doubt about "dire predictions": "Perhaps the best indication that the sky will not fall after today’s decision is that it has not done so already." Plenty of states do not rely on certificates (or on surrogate witnesses), and they have managed. I will write more about this issue later, but for now just a couple of quick points: First, most defendants, as the Court says, have no desire for the lab technician to appear. Second, the Court properly notes that a simple notice-and-demand statute is valid. Under such a statute, if the prosecution gives timely notice of of intent to use a certificate, the defendant must make a timely demand for the witness to appear or give up the right.

I think the same rationale applies in military cases. The sky will not fall, and it’s clearly inappropriate to base political and administrative concerns above those of a constitutional requirement.